Expert Overkill

Louis Vuitton Malletier v. Dooney & Bourke, Inc.

U.S. District Court for the Southern District of New York, December 13, 2007

Judge: Shira A. Scheindlin, U.S. District Judge

ISSUE: This is a mere snapshot within this monumental case that stretched over more than four year and produced 20,000 pages of documents. The issue at stake was an extremely successful line of “multicolore” handbags introduced by the plaintiff in 2003. These Louis Vuitton bags sold for as much as $3,950 and more than 70,000 (representing $300 million at retail) were sold the year they were introduced. The defendant released a handbag similar to the plaintiff’s and sold 500,000 of them at prices ranging from $125 to $350. A long and bitter lawsuit followed that was eventually won by the defendant.

SURVEY EXPERTS: This case was selected for this blog because six experts were brought into the case, and the work of five of those experts was excluded. Several of these experts developed surveys and all the survey evidence that was introduced into this case was excluded. So heavy was the expert overkill in this case that the judge appointed not one but two “Special Masters” to sift through and evaluate the reports from the survey experts.

RESULTS: Almost a clean sweep: Dr. Eugene Eriksen conducted a consumer confusion and dilution survey for the plaintiff. Special Masters recommended exclusion and judge concurred. Dr. Jacob Jacoby also was retained by the plaintiff to conduct a trademark confusion and dilution survey. Special Masters found Dr. Jacoby’s report and testimony …”unreliable,” and judge concurred. Dr. Richard Holub was retained by plaintiff to develop a technical report on the similarity of colors. Special Masters recommended testimony be excluded and judge concurred. Weston Anson was retained by plaintiff to review financial documents and accounting information as well as perform a “dilution study.” Special Masters permitted Anson to testify on financial facts but excluded his testimony on dilution in that it was “outside his area of expertise.” Judge concurred. Dr. Bradford Cornell, defendant’s damages expert, was the sole expert allowed to testify; Dr. Robert Reitter was retained by defendant to conduct a trademark confusion and trademark recognition survey. Special Masters recommended this survey be excluded and judge concurred.

RESOLUTION: The defendant prevailed. The New York Times (December 12, 2004) wrote: “The It Bag (Defendant’s bag) might be a knockoff – but it’s an acceptable knockoff.: While the case stretched on for years after this article, the results never changed.

SUBJECTIVE OPINION: The expert overkill in this case became so severe that the judge opted essentially to wash her hands of trying to understand the work of the survey experts and brought in the two Special Masters who might not have had the expertise to comprehend all the work. Thus, they recommended everything be excluded and the judge agreed.